A general resource for employees and management alike, covering issues old and new in the law of Ontario employment relationships.

Friday, January 25, 2013

Rob Ford Wins Appeal

The Divisional Court decision is out. Rob Ford won his appeal, on the basis of the argument that Council did not have the authority to order reimbursement of donors, as it did, in August 2010; the order was a nullity, and so there was no pecuniary interest at stake for Ford in voting to reverse the order in February 2012. No pecuniary interest = no conflict of interest. (This was the sole successful ground of appeal. The other arguments, about 'error in judgment', the small amount at stake, or the non-application of the MCIA, were rejected by the Divisional Court.)

In my last entry on this topic, I commented that I would have liked to have seen Justice Hackland deal with alternative arguments on this point: From the outset, I considered this to be something of a weak link in Magder's case, but I felt that the particulars of the February 2012 vote meant that it shouldn't matter. Remember: The alleged conflict of interest dealt with the February 2012 vote; not the August 2010 vote.

In February 2012, in the vote in issue in this matter, Ford voted in favour of a motion "That City Council rescinds the previous decision made under item CC 52.1 [the August 2010 vote] and directs that no further action be taken on this matter. [Emphasis added]"

The Divisional Court found that Council did not have authority to order Ford to reimburse donors. That's fine; not to say that Justice Hackland's interpretation was in any way nonsensical, but in some ways I prefer the Divisional Court's reasoning on that point.

However, what is much harder to accept is that a politician can vote to kill follow-up from his own breach of the Code of Conduct. As I noted before, consequences of breaching the Code of Conduct can include a suspension of remuneration: Council was empowered to dock his pay by $43,200, if it felt that that was an appropriate response to his misconduct. There's a clear pecuniary interest in the outcome of Council's dealings with Code of Conduct issues.

Besides which, I'm not sure the connection is that solid from 'CC 52.1 was ultra vires' to 'Ford didn't have a pecuniary interest in overturning it'.

Bottom line: I think there are reasons to doubt the correctness of this decision.

However, there are obstacles to further appeals.

The case law on these matters suggests that there's no available appeal from the Divisional Court, based on the wording of the MCIA. Frankly, I'm reluctant to read those cases too literally: I think there would be real question as to whether or not the Legislature could possibly deprive the Court of Appeal or Supreme Court of Canada of jurisdiction to hear appeals. However, at a minimum, there's an argument that the Court of Appeal can't, or doesn't have to, consider an appeal on its merits. I would have bet against them staying his removal from office, if he had lost today.

Even if the Court of Appeal were to hear the appeal on its merits, it is unlikely that we would get a significantly expedited hearing or decision - we would probably be looking at another year, give or take, before we get a decision, and potentially a further appeal to the Supreme Court of Canada from there. In other words, even in the best case scenario for Magder, by the time we get a final word on the matter, it's around election time.

So, regardless of what comes next, this is a huge win for Ford.

*****

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